[Cites 2, Cited by 0]
Bombay High Court
Rukhmanabai Ukhaji Dubele Through De ... vs Siddharth Ashram School Through Its ... on 12 December, 2025
2025:BHC-AUG:34823
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.11847 OF 2023
Rukhmanabai W/o Ukhaji Dubele
Age: 83 years, Occ.: Nil,
R/o: Padegaon, Tq. and Dist. Aurangabad
(Unable to Understand things and meaning thereof)
Through De-facto Guardian and Daughter
Kadubai W/o Tahmaji Harne
Age: 50 years; Occ. Household
R/o: Galli No.1, Hari Siddhi Devi road,
Harsool, Aurangabad. ... Petitioner
(Ori. Plaintiff)
VERSUS
1] Siddharth Ashram School,
Chowka, Tq. and Dist Aurangabad.
Through its Headmaster
2] Mhatma Phule Shikshan Prasarak Mandal,
Nanded, Through its Chairman,
Nagesh S/o Vittalrao Sawant,
Age: 58 Years; Occ. Chairman
R/o. Rajgruh., Pilwali Girni, Ashirwad Nagar,
Ganesh Nagar Road, Nanded ... Respondents
(Orig. Defendants)
.....
Shri. N. S. Muthiyan, Advocate for the Petitioner
Shri. N. T. Tribhuwan, Advocate for the Respondent Nos. 1 & 2
.....
CORAM : NEERAJ P. DHOTE, J.
RESERVED ON : NOVEMBER 26, 2025
PRONOUNCED ON : DECEMBER 12, 2025
FINAL ORDER :-
. This is the Writ Petition under Article 227 of the Constitution of
India against the Order dated 26.07.2023 passed by the learned 7 th Jt.
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Civil Judge, Junior Division, Aurangabad below Exh.29 (evidence of the
Plaintiff) in Regular Civil Suit No.689/2016.
2. Heard the learned Advocate for the Petitioner and the learned
Advocate for the Respondents. Perused the papers on record with the
assistance of the learned Advocates for both the sides.
3. The Petitioner is the Orig. Plaintiff and the Respondents are the
Orig. Defendants in the aforesaid civil suit. The said civil suit is for
injunction and possession of the suit property. The suit is contested by
the Respondents by filing their Written-statements. The Respondent
No.1 filed Counter Claim in the said civil suit, to which the Petitioner
filed her Written-statement. Issues were framed. The Petitioner filed her
evidence Affidavit and was cross-examined. The cross-examination was
part-heard. Thereafter, the Respondent No.2 appeared and got himself
impleaded in the suit and filed his Written-statement. The Petitioner
filed her evidence Affidavit for further Examination-in-chief in view of
the addition of Respondent No.2. The learned Advocate for the
Petitioner then filed the Application for declaration that the Petitioner
was incompetent to testify in the matter in view of the extreme old age.
The said Application was rejected by the learned Trial Court. The
learned Advocate for the Petitioner filed the pursis that the matter
cannot be dismissed. Being aggrieved by the impugned order, the Writ
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Petition is filed.
4. The impugned order dated 26.07.2023 reads thus:
"ORDER
The plaintiff appeared before the court and she stated that she
has no know knowledge about the oath she had not taken the
oath considering this circumstances, it appears that the
plaintiff is not willing to proceed with the matter. Therefore
her evidence is discarded. However the adv. for defendant can
use the admission elicited during cross if any. Considering all
these circumstances as the plaintiff is not giving her evidence
the matter is kept for dismissal order."
5. The learned Advocate for the Petitioner cited the decision of this
Court in Banganga Cooperative Housing Society Ltd and Ors vs. Vasanti
Gajanan Nerurkar and Ors, MANU/MH/1020/2015, wherein the
question of law was relating to affidavits in lieu of examination-in-chief
filed under Order-XVIII, Rule-4 of the Code of Civil Procedure, 1908
(for short, 'CPC'). The relevant paragraph no.22 from the said
Judgment reads thus:
"22. The result of this discussion is that:
"(a) No Evidence Affidavit under Order XVIII Rule 4 of the
CPC can be allowed to be 'withdrawn'. It is evidence as soon
as it is affirmed.
(b) The Evidence Affidavit cannot contain matter that is
irrelevant, inadmissible or both; or is in the nature of
arguments, submissions or prayers. This is not 'evidence' as
required by law. Were it to be attempted from the witness box,
it would not be permitted; and hence it cannot be allowed to
creep in merely because it happens to be placed on affidavit.
(c) It is permissible, and in fact often necessary, for a Court,
with a view to expedition and to avoid a needlessly protracted
cross-examination on irrelevancies and matter that is not
'evidence' to order that any such material that does not
constitute evidence be struck off or be ordered or directed to
be ignored without fear of adverse consequence.
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(d) Where an Evidence Affidavit is filed and the witness or
deponent, though otherwise available, is not made available
for cross-examination, the well-established consequences in
law will follow. Specifically, the opposite party will be entitled
to submit that an adverse inference be drawn against such a
witness or the party who fails to produce that witness for
cross-examination; and, further, that should that evidence
contain any admissions, these may be used by the other party;
but so much of the evidence as is against the party entitled to
cross-examination but which has gone untested for want of
production of the witness will be liable to be ignored."
6. The learned Advocate for the Respondents submits
that, one Regular Civil Suit No.55/2001 was filed by the Petitioner
against one Shri. B. V. Gaikwad for Perpetual Injunction and the
same was withdrawn stating that, the suit was filed without her
knowledge by her Advocate by misusing the authority given by her
and the said suit was disposed off as withdrawn in February-2018.
He submits that, the Petitioner, without there being incapacity to
submit herself for cross-examination, tactfully refused to subject
her to the cross-examination and therefore, the learned Trial Court
was justified in passing the said order. However, he fairly submits
that, there cannot be dismissal of the suit on that ground. On the
other hand, according to the learned Advocate for the Petitioner,
whatever evidence has come on record can be considered.
7. On going through the impugned order and the
observations in the above referred Judgment, particularly sub-para
(d) of para no.22, the impugned order calls for interference only to
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the extent of keeping the matter for dismissal. The Petitioner may
lead other evidence, if available and the matter can proceed
further without the same being dismissed in terms of the impugned
order. Rest of the impugned order calls for no interference. Hence,
the following order.
ORDER
(i) The Writ Petition is partly allowed.
(ii) The impugned Order dated 26.07.2023 passed below Exh.29 in
Regular Civil Suit No.689/2016 is set aside to the extent it speaks
of keeping the mater for dismissal order.
(iii) The Petition stands disposed off.
( NEERAJ P. DHOTE, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 12/12/2025 14:38:50
